Full document / COSOC-W-86-002 - the National Sea Grant Library

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oatorlal in the future. The oil companies apparently are willing to
participate in the program, but do not want to expand their operations
into an area of unknown liability.
Consequently, the NFEA seeks to limit the liability of donors of
materials, in fact, to end it at the point that title to the reef
oatorlal Is transferred. However, the act nay actually Impose a
standard of strict liability rather than ordinary negligence on the
donor of oatorlal for a defect in the material at the time title to it
is transferred. The NFEA states that a donor of oatorlals "shall not
be liable for damages arising from the use of such materials in an
artificial reef, if such materials meet applicable requirements of tha
plan published undor section 204 [the national reef plan] and are not
otherwise defective at the time title Is transferred." This does not
take into consideration the fact that the donor of material may not
have been able to determine if there was a defect In the material at
the tine title was transferred, and the fact that this defect oay not
have been created by the actions of the donor.
A probably typical example would be the removal of an obsoleto platform
from the ocean floor for towing to an artificial reef site. In the
process of removal, particularly if the platform is toppled, the
platform could be damaged. Tho oil company oay exert great effort to
detormine if any structural damage has occurred, but finds nothing.
After the platform is In place as a reef, a portion of it collapses on
a diver or washes away to end up in a fishing net. The Injured party
may be able to show that there was a defect at the time title was
transferred. The oil company would then be held to a strict liability
standard, although It exerted great effort to protect Itself.
Sooo might argue that such questions are theoretical rather than
practical. It does little good to respond to such a problem by
attacking the practicality of such a situation or the difficulty of
proving that a dofect oxisted ot a specific time. The risk of
liability Is the problem, not the odds of the situation actually
arising. There are legal rules that would allow the Injured party to
argue that there oust havo been sose defect or otherwise the accident
would not have happened. This is known as the res ipse locquitur
doctrine - "the thing speaks for Itself." The answer is not to debate
tho possibility, but to amend the statute so that the standard is not
so strict.
The permittee's risk of liability was also considered In tho Act, and
it states that the permittee "shall not bo liable for damages caused by
activities required to bo undertaken under any terms and conditions of
the permit, if the permittee is in compliance with such terms and
conditions." (Eophasis added.) The Act goes on to state that the
permittee "shall be liable, to the extent determined under applicable
law, for damages to which paragraph (1) [the above] does not apply."
This second provision makes clear the fact that ordinary negligence
rules will still have an Impact on reef programs. As mentioned above,
the Jacksonville and Hobile Corps' permits required the maintenance of
permitted structures in good condition. There may bo no liability for
activities conducted to Insure that the reef is in good condition,
i.e., inspections, but if the inspection is negligently performed and o
problem is not discovered, liability may arise if an injury later